Federal Judiciary

United States v. Muse, No. 08-0831-cr, 08-0967-cr (2d Cir. Feb. 20, 2009) (found here)

Muse challenged (among other things) the district court's calculation of his criminal history on the ground that the court erroneously added a criminal history point for his prior conviction for unlawful possession of marijuana.  Specifically, he argued that that offense should not count because it is "more similar to a minor traffic infraction or public intoxication."  The Second Circuit rejected the argument, noting that drug possession is not one of the offenses excluded from U.S.S.G. § 4A1.2(c)(2).  Moreover, while the Second Circuit noted that other "similar offenses" are excluded, "we conclude that marijuana possession is not a 'similar' offense.  The elements of unlawful drug possession are not similar to a minor traffic infraction, or any other excepted offense."

Unfortunately, the details of Muse's prior conviction for marijuana possession are not provided.  But it's worth noting that possession of marijuana (particularly in the context of personal use) frequently resolves with an ACD (and adjournment in contemplation of dismissal) when charges are brought in New York state court.  Likewise, states such as Massachusetts have recently done what the Second Circuit rejects -- equating possession of small amounts of marijuana with traffic offenses.